1) Judicial Review:

a. Marbury:
i. Establishing jurisdiction review for the supreme court.
b. Martin
i. Can review state sup ct
c. Calder
i. All ex posto facto are retrospective, not all retrospective are ex-posto
laws- only criminal
2) Standing – ability of a litigant to bring a claim and have the court adjudicate the cause of
action based on the merits. These arise under the Const, Fed. Statutes, & Treaties. Rare
occurrence for an equity claim if w/ diversity.
i. Constitutional
1. Need to have a “case or controversy” as outlines in the case of
controversy clause – “authority of ct. ix expanded to hear cases or
controversies.”
a. 1) P needs to show a real, palpable, injury-in-fact.
i. Injury-in-fact:
1. Real, concrete, particularized injury.
2. Unique and distinct from all others.
3. Fairly traceable to adversary.
4. Relief request will likely alleviate the harm.
b. 2) Where if relief granted it is likely to alleviate the alleged
harm.
i. Exception: Imminent injury.
ii. Prudential
1. In prudence, the ct. decides not to take the case as to preserve
judicial resources so as not to open the floodgates of litigation, for
a matter which may be able to be resolved through other political
means.
2. Always subjective – judge made.
a. Ct. can decide not to hear a case that truly has standing
through this.
iii. Reverse Prudential Standing
1. Ct. decides to hear a case that otherwise does not have standing in
an effort to preserve judicial resources and for that which they
believe is in the best interest of public policy.
iv. 3rd Party Standing: 3rd party suing on behalf of another.
1. A 3rd party may have standing to sue on behalf of another who is
not present in the courtroom when:
a. 1) The cause of action arises under Constitution (not state)
b. 2) Entity still must show injury-in-fact and all of its
requirements.
i. The close the connection between 3rd party and
assoc. the better.
v. Muskrat (native American land)
 1. Advisory opinion – P does not have standing b/c he is simply
looking for the ct to evaluate the statute. No actual injury-in-fact.
vi. Allen v. Wright (black parents/public school)
1. P’s do not have standing to challenege the IRS policy b/c the
injury-in-fact is neither fairly traceable, nor is it shown a remedy
will likely alleviate the harm – will the school actually
desegregate/will they send their children there.
2. They never tried to send their children there – no injury-in-fact.
vii. Lujan v. Wildlife (ESA)
1. P’s do not have standing to challenge the endangered species act
b/c there is no injury distinct from all others. They brought this on
behalf of all – not unique.
2. When Organization is suing in it’s own name – the individual
members must have standing!
viii. Massachusetts v. Melon (maternity taxes)
1. P does not have standing to sue as taxpayer b/c to state a harm as
result of tax funds spent is too infetismal/minute to allow the court
to grant a proper remedy.
a. Frothingham Rule:
i. The virtual, total blanket prohibition for a taxpayer
to challenging the govts expenditure of tax funds as
their sole argument for injury as a result of injury
through financial means.
ii. Person challenging the expenditure of funds must
show that not only is there a Constitutional
impediment on the statute, but that they have
sustained an actual, or imminent, harm.
ix. Flast v. Cohen (church taxes – exception)
1. P’s do have standing to sue as taxpayers for the expenditure of
their tax dollars to aid religious schools.
a. Exception to the Frothingham Rule:
i. Challenger must show they actually paid the taxes.
ii. Must show express Constitutional prohibition on
what Congress is trying to do.
x. Schlesinger v. Reservists Comm. (incompatibility clause)
1. P’s do not have standing to challenge House members under the
Incompatibility clause for their membership in the reserves – they
claimed to rep all citizens – therefore not unique injury distinct
from all others. Also nexus issue – how can you show this caused
misrepresentation to you?
a. Problem of Standing as a Group: You must show the
individual members of the group have standing. How can
ct. determine which members were effected and to what
extent? How can ct. determine the remedy will alleviate
each members harm?
xi. Warth v. Seldin (NY zoning)
 1. P’s do not have standing to challenge the neighboring zoning
ordiance. P’s failed to show the ordinance actually caused them an
injury – there not actually harmed from it. Also a nexus issue.
Even more, how can remedy be shown to increase home values?
xii. Hollingsworth v. Parry (private parties for Cali)
1. 3rd party private individuals do not have standing to appeal
decision of other party if there is insufficient nexus to the entity
they’re representing.
xiii. Laird v. Tatum (protest photos)
1. P’s do not have standing in their challenge about chilling.
2. The chilling of 1st Amendment rights alone by the sole virtue of
the existence of govt. activity is insufficient to constitute
standing.(nexus issue) Maybe you’ll still protest?
3) National Legislative Power
a. McCulloch v. Maryland (MD taxing banks)
i. D’s statute taxing all banks not chartered by state; taxing Fed bank.
ii. D not allowed to tax a federal bank within their state w/o violating the
Supremacy Clause (people constructed Fed. Govt. with supremacy clause
expecting it to be Supreme)
iii. P allowed to erect fed bank in State as result of Necessary & Proper
Clause.
1. Necessary & Proper = anything that is “needful/helpful”. This
automatically expands govt.’s 17 enumerate powers.
a. This interpretation puts the Jeffersonian/Hamiltonian
debate about what Congress can do to rest. The Feds do
still need rational basis though.
iv. Necessary & Proper Clause – Congress shall have authority to make all
laws which are necessary & proper…
b. Gibbons v. Ogden (NY waterways monopoly)
i. Ct. held for D preventing P from operating competitive steamboat biz.
1. Commerce defines as intercourse.
2. Commerce Clause, even in dormant state, prevails over State
legislation, not b/c of Supremacy clause, but b/c it’s power is
plenary.
3. “Among” in Commerce Clause means “intermingle with.”
4. State cannot interfere with Federal interstate Commerce.
a. Dissent: Jeffersonian – “Among”; once interstate
commerce passes State line, up to States as result of 10th.
c. Police Power – Given to the States by The Constitution (10th) so cannot be taken
away.
i. The inherent (from State Sovereignty) and residual power of the States to
enact legislation for the health, safety, general welfare, & morality of
persons within the State (not citizens).
d. Champion v. Aimes (lottery ticket)
i. Ct. invalidates LA statute allowing lottery tickets b/c Fed. Statute prohibits
gambling.
 1. “Regulate” Commerce may mean to prohibit. It may also mean to
prohibit arbitrarily b/c this is a piece of paper (not bomb).
2. This automatically diminishes a States power to do business.
3. W/ Plenary Power under Commerce Clause, to determine
something harmful:
a. 1) Rational basis (any rational basis)
b. 2) No other express prohibition in the Constitution (1st A)
e. Commerce Clause:
i. Power of govt. to regulate interstate commerce.
ii. This power is plenary – full, final, unto itself.
f. Hamer v. Dagenheart (S.C. child labor production)(X)
i. Ct. invalidated the Child Labor Act and allowed S.C. statute to stand
which permitted children <14 to work b/c it said this Act regulated the
conditions of production, not commerce.
1. Dissent (law today) – all commercial regulation by Congress is
valid b/c the court cannot second guess Congress’ judgement b/c
it’s power is plenary. Ct. can only invalidate if no rational basis or
other express Constitutional impediment.
g. Carter v. Carter Coal (delegating for coal)(X)
i. Ct. held that Congress cannot delegate it’s powers away – here it
delegated it to the board who determined the prices of coal.
1. Dissent: (law today) Congress’ Commerce Clause power is plenary
& therefore elastic. It can, and should be able to delegate it’s
powers away to entities that are better suited at addressing the
well-being of the aggregate econ. market.
h. NLRB (crim law sting)
i. Congress may place the sting of the criminal law on econ. matters.
ii. Congress can delegate away its powers(board) as long as:
1. Due process
2. There is a “close & substantial” relationship to interstate
commerce.
a. So Congress can regulate intrastate activities as long as
there is a close & substantial relationship & may even do so
through delegating away its powers to a board.
i. Houston Railway (TX competing w/ LA)
i. Congress can regulate intrastate activity when it is intertwined with
interstate activity & bears a close & substantial relationship.
ii. It can also regulate intrastate activity when discriminatory activity bears
an injury upon interstate activity through close & substantial relationship.
j. U.S. v. Darby (raw lumber materials)
i. Congress is free to put the sting of the criminal law, & regulate, on
intrastate activities when interstate activities is interfered with.
k. Wickard v. Filburn (wheat consumption)
i. By not engaging in the market, one is competing with the market &
therefore Congress can regulate that activity.
 ii. Congress can regulate that which on it’s own is immeasurable, but when
taken on the aggregate affects the whole market = aggregate theory.
l. Heart of ATL (hotel)
i. Congress may regulate a purely local activity if it is found to interfere with
interstate commerce – ct. may look at level of interference.
1. Great Counters: If I lose business, that is a taking w/o due process.
a. Taking away my property right of right to exclude.
i. Can exclude persons for anything not from birth.
m. McClung (ollie’s bbq)
i. Congress may look into where one acquires there goods from to find an
interference with interstate commerce and then regulate that local activity.
n. U.S. v. Lopez (gun)
i. Act is unconstitutional b/c the mere possession of a gun is not commercial
activity. (Feds using CC as mask for “Fed. Police Power.”)
1. 3 Areas Congress May Regulate under Commerce C: (Lopez Test)
a. 1) Channels used for interstate commerce
b. 2) The instrumentalities used for interstate shipment of
commerce (includes people/things)
c. 3) Any activity that substantially interferes with interstate
commerce
i. Test for Sub. Interference:
1. Are the actors commercial?
2. 2) Is the conduct being regulated
commercial in character?
3. Is the purpose of the statute commercial in
character?
o. U.S. v. Morrison (VA tech rape)
i. Ct. held the statute was unconstitutional/unjustified under the commerce
clause – nothing commercial about gender motivated crimes.
p. Seblius (health care act)
i. Ct. held that the Medicaid expansion is unconstitutional. Congress cannot
compel/force you into commercial activity through the Commerce clause
– although it is allowed to encourage you through the Taxing & Spending
Clause.
q. Gonzales v. Raich (pot in CA home)
i. Congress can regulate non-economic activity that is essential to the larger
economic scheme, although the non-economic activity is insubstantial to
the larger economic scheme.
1. This is really just them using the 3rd part under Lopez test for
determining whether something substantially interferes with
interstate commerce – they can regulate commercial or non-
commercial as long as substantially affects.

r. Taxing & Spending Clause

i. Generally: Congress is permitted to spend & levy taxes for the common
defence and general welfare.
 1. General welfare cannot equal private purpose (i.e. one person). It
needs to benefit all.
2. Congress can use conditions (strings) to provide motive for what
they seek through this clause – like adhesion k.
3. Ct. will not 2nd guess Congress’ purpose behind a statute – but the
condition must have a rational basis.
a. Limitations:
i. The true purpose must be for the general welfare
(this is the RB)
ii. The conditions must be clear & unambiguous.
iii. There must be a federal purpose (general welfare is
always a federal purpose)
iv. Cannot force the states to violate the Constitution.
ii. U.S. v. Butler (agr. acreage funds)
1. Ct. holds the Act is unconstitutional under the Taxing & spending
clause b/c it does not permit Congress to regulate, but rather levy
& spend. Furthermore, this was not for “general” welfare.
iii. South Dakota v. Dole (booze highway funds)
1. The Act is constitutional. Although Congress cannot state what the
drinking age should be, they are allowed to encourage the States to
modify their laws through distribution of funds from T&S Clause.
iv.
s. Treaties – Independent source of Power for Congress.
i. Although a treaty creates an independent source of power for Congress:
1. The subject matter and general thrust of the treaty must have a
foreign policy issue.
2. The treaty cannot contradict Constitutional guarantees or
individual liberties under the Constitution.
3. Not all written agreements w/ foreign govts are treaties – only
those ratified by 2/3 of the Senate.
ii. Missouri v. Holland (migratory bird Act)
1. Treaty trumps the States argument of 10th – Supremacy Clause.
t. Occupying The Field (Preemption)
i. Test: Is the Fed. legislation language clear & are the Feds trying to
legislate over an area where power is tied to them through Constitution?
1. Where the Fed. statute language is clear & it is obviously an area
the feds have power over – NO STATE LEGISLATION.
2. Where there are gaps, the States may erect legislation as long as
it’s affect neither strengthens nor weakens the Fed. legislation.
3. If Feds silent on the issue, States may erect legislation.
a. Feds leg > State leg b/c of Supremacy Clause.

ii. Express & Implied Preemption

1. Express Preemption: Language in Fed. Statute is clear & (a) it is
arguably an area congress can exercise power over & (b) Congress
 has been given power over this area through the Constitution itself,
or the Necessary & Proper Clause.
2. Implied Preemption: Fed. statute language does not state it is
preempting, but looking at past Congressional behavior, they show
they have been preempting.
iii. Hines v. Davidowitz (PA alien registration)
1. Ct. held for Fed statute b/c language was clear and this area was
clearly one of Fed. power (foreign relations) and Sup. Clause.
u. State As Market Participant
i. State of NY v. U.S. (mineral water)
1. Ct. held Feds allowed to tax the State because it entered private
market.
a. Proprietary – If State enters the market of something any
private actor can do, open to same & all taxes & regulations
of private person.
b. Governmental – If State in market of something only State
can do (po-9) Feds can’t tax.
i. States can never tax Feds (McCulloch)
v. Guaranty Clause
i. N.Y. v. U.S. (waste $)
1. Ct. held Feds cannot tell States how to spend their $ through the
Taxing & Spending Clause b/c would be violation of the Guaranty
Clause ensuring Republican form of govt.
2. Federalism Principle – No matter how strong Federal Interest, Feds
cannot commandeer State govt and tell them how & what to do,
even if States consent b/c violation of Guaranty Clause.
w. Take Care Clause
i. Pres. shall take care that all Fed. laws are faithfully executed.
1. Printz v. U.S. (CELO)
a. Ct. held for P finding that this violated the Guaranty clause
b/c Congress is commandeering the State (the CELO) to
compel him to undertake some action and this is in
violation to Republican form of Govt. (even if temp)
b. Also violates Take Care Clause b/c Pres. can’t ensure this
will be carried out.
x. Qualifications Clause
i. U.S. Term Limits v. Thornton (AK Const.)
1. Ct. held that the State Constitution Amednment violated
Qualifications clause by adding to it.
a. Qualifications Clause is fixed – States cannot alter it, can
only be changed through Amendment to U.S. Constitution.
b. “Inhabitant” = residence there (bed suffices)
c. Officials elected by people, not States. Officials serve the
people, not agents of national govt.
4) Separation of Powers
a. Youngstown v. Sawyer (seize mills)
 i. Ct. held that Pres.’s taking of the mills was in violation of 5th.
ii. Pres. can only take property w/o just compensation at times of emergency
when w/o consent of Congress.
1. P: Pres. acting independent of Congress.
2. P – C: President is acting contrary to Congress. Power is lowest
hear. Can only get away with things he has express power to do
from Constitution.
3. P + C: Pres. acting with Congress. Power highest here. Can do
almost anything. Only bar are Constitutional limits.
b. Clinton v. N.Y. (line item veto)
i. Ct. held the Line Item Veto Act is unconstitutional b/c it violates
Presentation Clause.
ii. Presentation Clause: When a bill is presented to the Pres. he can only sign
or veto it.
1. Diff. branches cannot trade powers. Where one brach given
exclusive power, other branch cannot have.
c. U.S. v. Nixon (exec. privilege)
i. Ct. held Pres. entitled to Executive privilege in limited circumstances.
1. Military Secrets
2. Diplomatic Secrets
3. Sensitive National Security Interests
a. Military Generals, Diplomats, Spies – off limits.
i. Ct. will decide what is sensitive or not.
ii. We value the free communication between Pres.
and persons more than revealing it to public.
d. INS v. Chada (1 house veto)
i. Ct. held 1-house veto rule was unconstitutional. Violates Presentation
clause.
ii. Doesn’t matter that Houses consented to this – need separation of powers.

5) State Power To Regulate

a. Dormant Commerce Clause: Even when Congress is Silent, States may not
legislate in interference of Commerce Clause b/c the power is plenary and
therefore always in effect.
i. Cooley v. Port of PA (local pilots)
1. Ct. held PA Act constitutional w/ dormant Commerce Clause
(modified later)
a. Doctrine of Slective Exclusiveness: When a commercial
subject of national importance produces a local concern,
States may legislate on it as long as it doesn’t interfere w/
Federal Purpose.

b. Southern Pacific Co. (train Car limit)

i. Ct. held AZ train limit law unconstitutional b/c violated Commerce
Clause.
1. Test To Determine Dormant Commerce Clause Violation Now:
 a. Rational Basis – State needs any rational basis for leg.
b. Balancing – State need vs. interference to Commerce
Clause – more need allows more interference
c. Anti-Discrimination – Does the legislation discriminate
against interstate commerce for local benefit? (this is either
through (1) language; or (2) effect when lang. neutral.
i. If Yes; Strict Scrutiny
1. Compelling State interest
2. Is this least restrictive alternative?
2. Don’t need to do this test when not dormant b/c of Sup. Clause.
ii. Consolidated Freightway (Iowa trucks)
1. Ct. held state law violated Commerce Clause (dormant). Failed on
balancing.
2. “Balancing” is not about showing enough; need substantial.
iii. Baldwin v. GAF (local milk license)
1. Ct. held the NY act making you buy local milk violates Commerce
Clause b/c protectionist.
a. 3 Part Purpose/Effect Test for Protectionism:
i. Was the legislation purpose/effect to enhance local
market
ii. Was the purpose/effect of the legislation to
constrain the local market when other measures in
place for State to achieve its ends?
iii. Was the purpose/effect of the legislation to
disproportionately burden those outside of local
market?
1. If yes to any, presumed unconst & SS can
save it.
iv. City of Alexandria (door-to-door sales)
1. Ct. held statute was constitutional on balancing test – local need
heightened when right to privacy at stake b/c of “home.”
v. Economic Isolation: States are not separate economic units – cannot
isolate themselves economically.
vi. Hughes v. OK (minnows)
1. Statute prohibiting transportation of minnows is unconstitutional
b/c discrimination – trying to keep resources.
vii. Reeves v. Stake (complex-end product)
1. Ct. held Constitutional.
a. State entered proprietary business and therefore is
operating in market as private actor & therefore can choose
who it does business w/ as long as not discriminating.

c. Privileges & Immunities Clause

i. People entitled to fundamental liberties in every state b/c they move with
you, such as Free Speech. However, not entitled to State rights, or other
rights that are not fundamental to move with you (right to vote).
 ii. Not doing 3 part test here b/c this is not discriminating, but rather
preventing privilege – so only rational basis.
1. Baldwin v. Fish & Game (MT hunting)
a. Ct. held constitutional – hunting is not fundamental liberty.
d. State Power to Tax
i. Test:
1. Sufficient nexus between taxpayer & state (usually phys.)
2. Tax cannot discriminate against interstate commerce (in-state &
out-of-state need to pay the same)
3. Tax has to be fairly apportioned.
4. Taxes must relate to services rendered or made available.
a. Side Notes – driving through ≠ nexus. Burden on party
paying tax.
ii. Complete Auto Body (GM cars)
1. Tax is held constitutional.

6) Substantive Protection of Economic Interests

a. Slaughter House Cases
i. LA statute creating monopoly held constitutional.
1. The right to work is not seen as fundamental liberty for Privlege &
Immunities clause. B/c Congress silent, states just need to hit
rational basis – sanitation.
b. Lochner (bakery)(X)
i. Ct. held the law violated the K clause.
ii. Ct. technically second guessed Congress – never does – here they said no
evidence to suggest the hours affected bread quality/quantity/safety (b/c k
clause?)
1. Lochnerizing = judge interpreting what they think law should be.
c. U.S. v. Carolene (filled milk) (overrules Lochner)
i. Ct. held Filled Milk Act was constitutional – despite using Commerce
Clause as mask.
ii. **Right to Engage in Commercial Activity ≠ substantive due process.
1. If legislation interfere w/ fundamental liberty – strict scrunity.
2. If legislation is based on discrimination – strict scrutiny.
3. All other Fed/State legislation just needs rational basis.
d. Takings Under 5th:
i. Applies to “persons” – not “citizens”
ii. Govt. can take private property as long as it is for public use & pay just
compensation.

1. Penn Central
a. Ct. held this was not a taking.
b. Sustaining tourism ($) was seen as economic benefit that
satisfied rational basis. Reciprocity of advantage satisfied
through trasnferrable air rights. Ct. also said P could
continue to use the building for primary purpose (R.R.)
 2. Test Under Penn:
a. Does the regulation enhance some public interest?
b. Does the regulation fall short of destroying/invading the
property bundle?
c. Is there still a substantial portion of the commercial value
left?
d. Is there some reciprocity of advtange?

3. Lucas v. S.C. (beach)

a. Ct. held this was a taking b/c it took all economically
beneficial use of the land.
b. If the regulation takes all econ. beneficial use of the land,
and the proscribed use does not violate state nuisance law –
taking.
4. Taking Test Under Lucas (Regulatory Taking)
a. Does the interference affect primary purpose of the land?
b. Is the regulation a permanent physical invasion?
c. Does the interference prohibit all econ. beneficial use of the
land?
5. Dolan v. City of Tegard
a. Ct. held this was a taking (dedication = exaction)
b. This case addresses the nexus requirement between what
the State wants to do and the landowners purpose.
i. Rough proportionality – There must be some
relationship between what State wants to do &
landowners purpose.
6. Kelo
a. Ct. held this was not taking.
b. This case helps define “public use”.
i. Govt. can take & give to another private party under
“public use” if there is econ. development/benefit
(taxes). Public use now includes increase govt.
wealth.
e. Contracts Clause
i. No State shall interfere with the obligations of a contract.
1. Home Building (MN foreclosure)
a. Ct. held MN statute constitutional.
i. This was impairing one tool of remedy – not
obligation.
2. Contract Clause Test Under Home Building:
a. 1) There is emergent need to protect general societal
interest.
b. 2) The statute is not designed for private purpose, but rather
targets general societal need.
c. 3) The relief must be apprpriately tailored to address the
emergency. (they say when goes in/out of effect)
 d. 4) Conditions imposed must be reasonable (judge
determines this)
e. 5) Legislation is temporary.
3. Allied Structure (MN pension fund)
a. Ct. held statute unconstitutional.
b. Creates the Modern Test For K Clause:
ii. Modern Test for K Clause:
1. If the impairment of the K is substantial
a. This is interference w/ k – not just obligation.
2. If P relies heavily & reasonably on K and govt. interferes with that
reliance.
3. If the statute was not necessary to address an important societal
interest
a. Usually econ. – high bar b/c “necessary.”
4. If Statute not temporary.
5. If the statute targets an industry never regulated before.
a. Conjunctive – govt. fails any, then over.
b. You argue that this built on Home Building, & that
although Home Building shows the test during an econ.
emergency, Allied shows still need to protect peoples
interest.
7) Protection of Individual Rights
a. Griswold (married birth control)
i. Statute found unconstitutional b/c found to be in right of privacy protected
by bill of rights. States & Feds can’t go after this. Applied to States
through 14th.
1. Zone of privacy – Area of human activity the State cannot regulate
unless it meets strict scrutiny.
2. Privacy Today – Area of human behavior so integral to happiness,
it is protected by Substantive Due Process.
b. Roe v. Wade
i. Right to have an abortion is in zone of privacy, so protected by strict
scrutiny. Right to have abortion is not fundamental liberty.
1. 1st Tri – State has no interest in either. Can only regulate
conditions for procedures (MD, sanitation)
2. 2nd Tri – Only has interest in mother. Cannot prohibit abortions
here, but can regulate more.
3. 3rd Tri – State has interest in both. Can do almost anything.
c. Planned Parenthood v. Casey
i. Ct. modified Roe, making two options now.
1. Undue Burden = If statute presents a substantial obstacle to the
woman, it occurs in ZOP & is therefore invalid.
2. This allows States to expand interest to the onset of viability,
which occurs in the 2nd trimester. So can do this or Roe.
d. Lawrence v. Texas (overrules Bower)
i. Ct. held TX statute unconstitutional.
 1. Right to choose sexual partner is intimate aspect of humanity and a
fundamental liberty & is therefore protected by Substantive Due
Process.
e. D.C. v. Heller
i. 2nd Amendment makes the right to have a gun in the home a fundamental
right. This extends to property – adjacent etc.
1. This sets a floor – States can expand, but not go below.
2. Made applicable to States through the 14th.
f. Shapiro v. Thompson (welfare)
i. 1 yr. waiting period violated right to travel which is fundamental liberty
and triggers strict scrutiny.
1. The right to travel need not actually be violated (people at border),
but if it is violated along path to another ultimate right, suffices.
(the ultimate right need not be fundamental)
8) Freedom Of Religion
a. Everson v. Board of Ed(school buses)
i. Ct. found the reimbursement was constitutional.
1. Separatism – Need institutional separation from Govt. & religion,
but that does not mean no connection at all, just means have to be
neutral (no handicap, help)
2. Dissent: Standard Aid to Enterprise Theory – Aiding any religion
is helping. If you free up burden ($) in one area, that relieves $ to
be spent elsewhere – that’s helping.
b. Zorach v. Caluson (leaving school early)
i. Ct. held the program was constitutional – not aiding them in any way, but
merely giving them an accommodation. Not favoring one religion over
another.
1. Dissent: Subtle Coercion – These kids (<17) are subtly coerced by
seeing the others leave the classroom & violates Free Exercise.
c. Lemon
i. Ct. held RI statute allowing Reimbursement is unconstitutional b/c need
conspicuous separation of church & state – can’t give for them to spen as
they see fit.
1. Lemon Test: (For Est. Clause)
a. 1) The statute must have a secular purpose.
b. 2) The primary effect of the statute may neither
enhance/inhibit religion.
c. 3) The statute may neither compel nor facilitate excessive
govt. entanglement.
d. Free Exercise Clause
i. Coercion – forcing to/not to do something
ii. (+)/(-) – shifting spectrum depending on child’s age. 18 is cutoff.
e. Tilton (20 yr stat)
i. Ct. held statute constitutional b/c one-shot deal. But judicial surgery on the
SOL. *Building not drapped in religious sumbolism*
1. Religious institution can receive funding if given across the board.
 ii. Schemp (morning prayer)
1. Ct. held morning prayer in public school w/ option to leave was
unconstitutional b/c of subtle coercion – putting the stamp of
approval on religion. Kids to young.
a. Some prayers have become secular (football game)
iii. Lynch (navity scene)
1. Ct. held navity scene did not violate Est. Clause. Secular purpose
to bring $ in. “Winter Wonderland” didn’t enhance/inhibit.
a. *When religious symbols placed on govt. property, must
look through the lemon test as a reasonable non-believer.
iv. Lee (grad prayer)
1. Ct. held unconstitutional under Free Exercise b/c Coercion (+),
with plus being younger people in audience. Symbolism, not so
much substance.
v. Wisconsin v. Yoder
1. Statute ruled unconstitutional. Religion cannot be used to avoid
gen. crim law, but can for civil.
2. This is coercion (+), with plus being right to raise a child and that
is a fundamental liberty, so instead of compelling state interest, this
is State Interest of The Highest Order.
vi. Employment Division v. Smith (peyote)
1. Ct. held not violation of Free exercise clause, b/c one may not use
religious beliefs to avoid general criminal law.
2. For Gen. Crim. law, govt. only needs rational basis. But the
uniform application of it is compelling interest.
vii. Boerne v. Flowers (St. Peter Church alter)
1. Ct. held RFRA invalidated.
a. Ct. & not Congress interprets the Constitution to determine
what is a fundamental liberty.
b. Ct & not Congress determine what due process standard is
used.
viii. Welsh (draft)
1. Ct. held “life & intellectual” beliefs take on ame value as theistic
beliefs for exemption from war. Interesting b/c ct. can’t inquire to
much into this w/o violating entanglement issue.
9) Equal Protection
a. Korematsu
i. Ct. held statute constitutional – despite being a suspect classification this
met Strict Scrutiny during “war time.”
b. Plessy
i. Ct. held constitutional through Separate but Equal.
ii. Dissent becomes law – civil war amendments of 13,14,15 are supposed to
make govt. color blind and remove race.
c. Brown
d. Loving
 i. Ct. held unconstitutional under 14th EPC. 14th is supposed to be race
neutral.
1. Right to marry is a fundamental liberty.
2. Right to choose mate is protected by Substantive Due Process; so
technically 2 strict scrutiny tests here.
a. Invidious discrimination only passes if meets Strict
Scrutiny.
e. Yick Wo (laundry)
i. Ct. held this unconstitutional b/c of the effect of the statute – neutral on
face.
1. Suspect Classification Test:
a. 1) Targets immutable characteristic from birth (not gender)
b. 2) History of political weakness in that group.
c. 3) History of aggressive/oppressive treatment of the group.
d. 4) Lack of relevance between what State says its trying to
do and what the statute is doing (effect).
i. Technically can pass invidious discrimination &
suspect classification of statute through Strict
Scrutiny.
f. City of Richmond
i. Ct. held ordiance subsidizing contractors hiring minority owned
subcontractors was unconstitutional.
1. If a jx. wants to remedy prior discrimination, it can only remedy
prior discrimination it caused, or it’s predecessors – not generaly
societal.
g. Shaw v. Reno (snake shape)
i. Ct. held the voting district was unconstitutional b/c violated EPC.
1. Articulated new right – right to vote in color blind process.
2. Statute still presumed unconstitutional, but if shape is bizarre
enough to make ct. think segregated by something other than
common interest, burden shifts to govt. to disprove.
h. School Admissions Cases
i. If race is a factor, strict scrutiny.
ii. Diverse student body is viable compelling state interest.
1. * A state may use race as a factor for determining admissions, and
a diverse student body will be a viable compelling State intrest.
However, race must be narrowly tailored in admissions process – it
must not be a primary/predominant factor, but one that can be
outweighed by others.
i. Romer v. Evans (Col. LGBT)
i. Amendment to State Constitution fails for not meeting RATIONAL
BASIS.
10) Gender Discrimination
a. Gender is nont considered a suspect classification so it does not receive Strict
Scrutiny, but rather intermediate scrutiny.
 i. 1) There must be an important governmental objective (compelling state
interest < X > rational basis)
ii. 2) There must be a substantial relationship between the Statute and what
the States objective.
iii. 3) There must be modern, contemporary articulation within the Statute in
support of it.
iv. 4) The statutes purpose cannot be supported by hindsight.
v. 5) The statute must permit exceptions for unique and particular
circumstances.
b. Craig v. Boeren (3.2% booze for chicks)
i. Ct. invalidated statute through the intermediate scrutiny test.
11) Same-Sex
a. Obergefell
i. Ct. held that the right to choose a mate is protected by substantive due
process.
1. As a result of this, above, & case, every State now must permit
same-sex marriage & civil unions & recognize the legal marriage
of same-sex couples from another State (Windsor).
12) State Action – an effort to ttribute the duties posed to the States by the 14th on a private
actor b/c of their symbiotic relationship to the State.
a. Symbiotic Rlationship: So close of a relationship between the actor & the State
that the individual is constrained by the 14th the same way the State is.
i. Shelly (covenant)
1. Covenant invalidated as unconstitutional.
a. Seller is bound by 14th as a result of the symbiotic
relationship between them seeking to have it enforced.
b. Judge’s decisions are considered State actions in the
enforcement of such covenants so also bound by 14th.
ii. Reitman
1. State action through inaction.
2. State doesn’t have power decline real property based on race, so it
cannot give that power to private parties through inaction.
iii. Edmonson (black jurors)
1. Ct. held attorneys were constrained by 14th through State action.
2. Comes up with 3 Part Tests for Symbiotic Relationship:
a. 1) Does the constitutional deprivation receive its power
from State Authority?
b. 2) Can the person alleged to be doing the constitutional
deprivation be fairly characterized as a State actor?
c. 3) Can the private parties behavior be fairly considered
governmental in nature?
13) Freedom of Expression & Assoc.
a. Abrams
i. Ct. held constitutional – convicted under espionage Act.
 1. Bad Tendency Test – Congress may prohibit speech that
reasonable persons find that harmful societal events will follow if
followed.
ii. Dissent: 1st Amend “Congr. shall not…” speech meant to challenge
orthodoxies.
b. Gitlow
i. Holmes dissent brings us closer to law again – “no clear & present
danger”. All words are incitements and public has ability to follow or not.
c. Whitney
i. Concurrence helps bring closer to law – Congress should have to prove the
words it proscribes are actually clear & present danger (dangerous act will
occur before time to quell)
d. Davis
i. Dissent (law in Brandeburg) All innocuous speech is protected, and all
speech is innocuous when there is time to rebut/diminish/neutralize.
e. Brandeburg
i. New Test for Speech – higher than strict scrutiny.
1. Taken as a whole, is there any lawful interpretation of the speech?
2. Is there incitement – a real & genuine call to do an act that is
unlawful in & of itself?
3. Is the unlawful act called for likely to be acted upon after the
speaker’s command?
a. If govt. doesn’t pass all 3 – protected.
14) Speech on Public Official
a. NY Times (AL commissioner)
i. New Test For Speech on Public Official
1. Was the defamatory statement made to the public officials official
conduct, & was it made at “him” & not govt. unit.
2. Was there actual malice? (knowledge of falsity/reckless disregard
for truth)
b. Gertz (left-wing lawyer)
i. NY Times applies to private individuals who voluntarily enter public
controversy.
c. Time v. Hill (home invaision story)
i. NY Times Rule applies to private individuals involved in public interest.
d. Florida Star (sex assault story)
i. Media may publish story on private individual if:
1. Material obtained lawfully
2. Story is in public’s interest
a. A lot of deference to media here so as not to chill them.
i. IF OBTAINIED UNLAWFULLY – State Interest
of The Highest Order
15) Obscenity In Speech
a. Not protected under Brandenburg.
i. Roth
1. Obscenity not protected under Bradenburg.
 ii. Stanley
1. Obscenity is protected though when in the house due to the right to
privacy/though given to use from 1st, 4th, 5th.
iii. Miller
1. New Test for Determining Obscenities
a. 1) Whether average person applying community standards
finds the work taken as a whole appeals to their prurient
interests.
b. 2) Whether work taken as a whole describes in a patently
offensive way, sexual conduct that is speficially prohibited
by the Statute.
c. 3) The work taken as a whole, possesses no literary,
political, artistic, or scientific value.
b. Expressions
i. Cohen (fuck the draft)
1. Ct. finds this is protected b/c it is an expression of an idea – not
loudly.
2. Expressions of political views receive the highest level of
protection.
3. Intensifier is generally protected, but may not be if Statute
describes it under obscenity.
ii. Chaplinsky (Jehovah)
1. Ct. upholds conviction.
2. 2nd exception to Brandenburg – Fighting words.
a. 3 Part Test:
i. Do the words express an exposition of an Idea?
1. If yes – not guilty, if no;
ii. Do the words by there very utterance cause injury –
or
iii. Do the words incite an immediate breach of the
peace?
c. Expressions + Conduct
i. O’Brien
1. 4 Part Test govt. must meet to show sufficient govt. interest in
prohibiting conduct
a. Has to be within power of Constitution
b. The prohibition further an important or substantial govt.
interest
c. The govt. interest is unrelated to the suppression of free
speech
d. The incidental restriction on free speech is no greater then
is essential to further the govt. interest
ii. Texas v. Johnson
1. This is for the suppression of free speech when there is substantial
govt interest & there is another option for the speech
a. Time Place & Manner Test
 2. Govt. behavior must be
a. 1) Content neutral – the ban must be content neutral
b. 2) Narrowly tailored – to serve on important/substantial
govt. intrest
c. 3) Leave Ample Time – provide exception at another time
& place for the expression of this idea to similar audience
iii. Commercial Speech
1. VA Board of Pharmacy
a. Test For Commercial Speech
i. Speech must contain lawful commercial activities
ii. Govt. regulation must advance an important or
substantial govt. interest
iii. The regulation may not be any more extensive than
is essential to enforce their honesty
2. Central Hudson Gas
a. Govt. cannot regulate truthful & accurate info about lawful
commercial product, but it can regulate truthful speech for
harmful product (tobacco)
iv. Speech/Trans On Govt. Property
1. Int’l Society v. Lee
a. Govt. cannot ban non-commercial speech on their property,
but landowners may regulate for commercial speech
(proposing trans)
b. Govt. cannot band commercial activity on govt property b/c
of content – need non-content reason
v. Speech & Minors
1. Tinker
a. Minors have same free speech rights as adults in school as
long as it’s silent, & as long as it does not interfere w.
school’s mission.
2. Morse
a. Schools may regulate speech of minors on school grounds
if the speech (or expression – armband) encourages a
criminal act.
b. Cts. give a lot of deference to school admin.